It has been succinctly said that the U.S. Senate is where ideas and legislation go to die. Although the Senate has been criticized for filibustering and slowing down the legislative process (a sentiment I have concurred with in the past and still do to a certain extent in the present), sometimes this deliberately slow and painstaking process is a good thing, protecting the interests and liberties of the American people. The most recent example is the Senate deciding not to take up the Cyber Information Sharing and Protection Act passed by the U.S. House of Representatives, instead deciding to work on analogous legislation on its own that would provide more privacy protections to individual Americans.
An individual’s constitutional right to privacy is a fundamental right enshrined into the jurisprudence of our American courts. It is a right that may not be abridged by either the federal or state governments. Yet that is exactly what the House of Representatives tried to do by passing CISPA. This legislation would enable private corporations to share people’s sensitive information with the federal government – information that includes personal emails, user information and direct messages sent through social media forums such as Facebook and Twitter – as long as it relates to a cyber threat or national security.
But CISPA’s definition of a cyber threat is very broad. As Rep. Nancy Pelosi, D-Cal., said, “I’m disappointed that we did not address some of the concerns mentioned by the White House about personal information. Unfortunately, it offers no policies and did not allow any amendments or real solution that upholds Americans’ right to privacy.” In addition, according to ProPublica, CISPA also provides “the private sector [with protection] from liability [when] they share private user information, as long as that information is deemed to have been shared for cybersecurity or national security purposes.” Pelosi stated that CISPA grants “overly broad liability protections and immunity to the businesses that violate our liberties.”
Fortunately, at least for the foreseeable future, the Senate has decided to not take up CISPA. Instead, the Senate is working on its own set of cybersecurity laws – one of which is the Cybersecurity and American Cyber Competitiveness Act. This proposed legislation protects the privacy rights of American individuals substantially better than CISPA. According to Michelle Richardson, legislative council with the American Civil Liberties Union, CACCA would require corporations to “pull out sensitive data [about citizens]” before sending people’s information to the federal government.
This isn’t the only legislation the Senate is working on that would better protect the privacy rights of American citizens. The Senate is currently in the process of trying to modify the Electronic Communications Privacy Act – an antiquated law that allows law enforcement officials to access people’s certain electronic information, including specific types of emails, without a warrant or probable cause. Under the Senate’s new proposal, in “most” situations law enforcement officials would be required to get a search warrant to obtain an individual’s email communications. As Sen. Patrick Leahy, D-Vt., said, “I think Americans are very concerned about unwanted intrusions into our private lives in cyberspace. There’s no question if someone wants to go into your house and go through your files and draws you are going to need a search warrant. But if you have those same files in the cloud you ought to have the same sense of privacy.”
Although the Senate is known for slowing down the legislative process, many times to the detriment of the American public, this is not always so. The Senate’s recent decision to not take up CISPA is one of the times that the Senate’s slow process has actually helped the American people. Hopefully, the Senate passes CACCA and new modifications to ECPA, which will uphold the American people’s fundamental constitutional right to privacy.
Aaron Loudenslager ([email protected]) is a first year law student.
